Bloomsbury Publishing Plc & Anor v Newsgroup Newspapers Ltd

An interlocutory injunction may be granted against an unidentified defendant where the defendant is known to exist, the order clearly defines the prohibited conduct, and the intended target will understand that the order applies to them when it is brought to their attention. Identification by name is not essential. A defendant may instead be identified by a photograph, an alias, or conduct which uniquely identifies the relevant wrongdoer. Such an order may also bind persons who, knowing of it, assist the principal wrongdoer.

The claimants sought urgent injunctive relief concerning an illicitly obtained copy of an unpublished Harry Potter novel. The person offering chapters of the book for sale was unidentified. The proposed defendant was described as the person or persons who had offered copies to specified newspapers. The central issue was whether the court had power to grant an effective injunction against a person who could not be identified by name.

1. The application was granted. The court made the requested order against the person or persons who had offered copies of the book to the specified newspapers.
2. Before granting an interlocutory injunction, apart from balance of convenience, the court should address four matters: whether the claimant has a good arguable case; whether the order clearly states what the defendant must and must not do; whether the defendant can be identified; and whether the order will be effective against a person who understands that it applies to them when it is brought to their attention.
3. The first two requirements were satisfied. The remaining requirements were also capable of satisfaction without knowing the defendant’s name. A person may be identified by an alias, a photograph, or sufficiently specific conduct. The essential question is whether the order is directed at particular wrongdoers and whether those wrongdoers will understand that they are its targets.
4. The court’s power was supported by the reasoning in Tony Blain Pty Ltd v Splain [1994] FSR 497. The approach in EMI Records v Kudhail [1985] FSR 36 illustrated a representative order against unnamed persons, although that case involved an identified individual who could represent the relevant group.
5. Once brought to the attention of the unidentified vendor, the order would bind that person. It would also be effective against others who, knowing of the order, assisted in attempts to distribute the book. The judge observed that the issue of John Doe orders would benefit from mature consideration on full argument, but held that granting such relief was within the court’s power in the urgent circumstances.